To Protect and Preserve Law Firm Records

Transcription

1 AALLSpectrum_Nov2008:1 10/17/08 9:25 AM Page 24 To Protect and Preserve Law Firm Records Records managers safeguard clients materials and make them available to people who need them by Judith D. Esrig I f client files in law firms could think and feel, they d probably be anxious and confused. Periodically, paper versions of these files are pulled from shelves in records centers and carted off to unfamiliar surroundings. Members of the legal staff paw through them and leave them stranded on desks for hours. Sometimes they are herded together with other files and transported to war rooms, where attorneys gather to discuss their contents. Electronic files, including s, have it even harder: they can be retrieved at any hour, day or night, from any location. Steward is a certified records manager (CRM), a designation by the Institute of Certified Records Manager based on a candidate s education, work experience, and score on a six-part examination that includes the analysis of case studies. Steward teaches a course in Records Management in the School of Library and Information Management (SLIM) at Emporia State University in Emporia, Kansas. He sees a parallel between information management in libraries and records centers. The skill sets taught in the SLIM program are also applicable to the My MLIS taught me the core principles of managing information: classification, organization, and retrieval. These also apply to records management. Beth Chiaiese, National Director of Loss Prevention at Foley & Lardner PC in Chicago Perhaps it is too much to say that paper and electronic files in a law firm experience anxiety, but clients certainly do; their lives and livelihoods depend on these files. Fortunately, clients can draw comfort from a group of people who are always looking out for them: records managers. Gary Grieme is one of these dedicated individuals. We are a stabilizing force in the firm, he says, our functions are vital. We keep an eye out so things don t get out of control. This article examines records management as described by Grieme, Bill Ainsworth, Beth Chiaiese, and David Steward. Grieme is records manager for Robins, Kaplan, Miller & Ciresi LLP in Minneapolis; Ainsworth is firm-wide manager of client information and records management for Buchanan Ingersoll & Rooney PC headquartered in Pittsburgh; Chiaiese is national director of loss prevention at Foley & Lardner PC in Chicago; and Steward is director of records at Husch Blackwell Sanders LLP in Kansas City, Missouri. 24 AALL Spectrum November 2008 profession of records and information management, Steward says. Some SLIM graduates consider records management as a career. Chiaiese is a CRM and has a master s degree in library and information science, including courses on law library management. My MLIS taught me the core principles of managing information: classification, organization, and retrieval. These also apply to records management, she says. In this article, Chiaiese, Steward, and the other experts discuss records departments, firms, and firms clients; specifically discussed is their duty to preserve and protect both paper and electronic files. Here the experts describe the development of new technologies for processing files and the need to educate and guide their customers: attorneys, paralegals, and secretaries. Finally, the experts speculate about the future of their profession and its relationship to the profession of librarianship Judith D. Esrig image istockphoto.com/ferran Traite Soler The Records Department, the Firm, and Clients Bill Ainsworth has a background in business, banking, and consulting that spans 28 years. He is not a records manager by trade, but considers himself to be an organizational developer. When I accept an assignment with an organization, I immediately study the existing processes, Ainsworth says. Typically I view each process step like a piece in a Lego set, and I use the existing pieces to build a more efficient and effective process. Because of his background and experiences, Ainsworth thinks of the records center in his law firm as a business within a business. Its purpose is to serve its customers attorneys and other members of the legal staff and to add value to the flow of information within the firm. Part of this value is the prevention of loss and the management of risks associated with the handling of client files. The files don t belong to the firm or the attorneys; they belong to the clients, he says. Clients pay for the work and their documents must be protected. Firms and attorneys also need to be protected from business losses and malpractice suits triggered by the mishandling of files, Ainsworth adds. As head of the records center, he acts as an ambassador of records, promoting the department and its staff throughout the firm at every opportunity. Ainsworth is also an educator and a negotiator with his customers; for example, when the department identified a need to standardize the naming and organizing of client information, Ainsworth implemented a marketing effort to solicit design input, initiate a collaborative effort, and develop a partnership with his internal customers. His goal was to ensure joint ownership of the final product. At each stage in the product s development, the design was presented to the different practice groups. This was an opportunity to obtain the attorneys comments and suggestions while emphasizing to them the value of the new process.

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3 The new concept SNOC: Standard Naming and Organizing Conventions is currently in place and continually being improved based on user feedback. As we get consensus from the practice groups, we implement the changes, Ainsworth says. This is a very controlled process where all recommended changes are compared against the basic design tenets before they are implemented. It will take about a year to complete all revisions, but the investment of time will bring great benefits to the firm and its practitioners. The Records Manager s Responsibilities Like Ainsworth, Steward stresses his department s responsibility to clients and the firm. We are like a register of deeds, he says. We have a fiduciary duty to the clients. Steward is a member of the Educational Development Committee of ARMA International, a non-profit organization for records managers, archivists, corporate librarians, imaging specialists, legal professionals, IT managers, consultants, and educators. The organization teaches its members the principles of records management and the ethics associated with its practice. In his firm s records department staff meetings, Steward stresses the importance of these principles and ethics. The information contained in client files is precious, he says. If the wrong person were to get hold of it, clients could suffer financial losses or injury to their reputations. Even revealing the fact that a person or a company is a client of the law firm could cause injury. Attorneys take an oath to uphold ethical standards, and records managers help them meet these standards. Steward presented this information to the decision makers, and the best business value was selected. Steward also uses cost comparisons when requesting a new staff position, software, or piece of equipment. If we are going to spend a dollar, we must demonstrate that we will generate a dollar in revenue, he says. Records Risk Management For 30 years, Beth Chiaiese has worked in law firms as a practitioner and consultant. One week after September 11, 2001, she was hired as director of loss prevention at Foley & Lardner PC. At the time, the firm was distributed across 16 offices. In these offices, each attorney managed his or her own client information. There were many points of risk, Chiaiese says. Foley & Lardner made the deliberate decision to place its records management program within the general counsel s office and focus on loss prevention and risk management. These efforts paid off as safe, effective information management became part of the firm culture. As time passed, this culture and the value the firm places on Steward interacts directly with his firm s clients. As a service of the firm, he consults with them about their record inventories, the organization and transportation of their records, and staff training. Steward s firm also provides legal advice about the steps clients must take to meet the requirements of the federal rules. Chiaiese has also consulted with firm clients about which records they must retain and which, according to written policies, they may destroy. We re helping clients, and I believe this will increase the importance of our roles in the firm, she says. The files don t belong to the firm or the attorneys; they belong to the clients. Clients pay for the work, and their documents must be protected. Bill Ainsworth, Firm Wide Manager of Client Information and Records Management for Buchanan Ingersoll & Rooney PC in Pittsburgh The Records Department Staff Records managers agree that the success of their departments depends on their staffs. Gary Grieme compares his staff to the cinematic stereotype that the people in the mail room know everything that s going on in a business. The records department staff interacts with not just the attorneys, but with everyone in the firm, Grieme says. Each member specializes and becomes an expert in a particular area. Almost daily, the staff faces the challenge of adjusting to fluctuations in the number of files that need to be processed. The attorneys do a great deal of work on contingency, The information contained in client files is precious. If the wrong person were to get hold of it, clients could suffer financial losses or injury to their reputations. Even revealing the fact that a person or a company is a client of the law firm could cause injury. David Steward, Director of Records at Husch Blackwell Sanders LLP in Kansas City, Missouri On a day-to-day basis, Steward documents the value of the records center by measuring every aspect of the department s operation. For example, knowing that space in the records center is limited, he studied the cost of storing inactive files onsite. He compared that cost to the cost of transferring the files to an offsite storage facility and paying for their retrieval when they are needed. technological innovation proved to be great assets. When the Federal Rules of Civil Procedure were amended to include electronic materials in discovery, Foley was prepared. We had foresight, she says. We knew that we needed to develop a national program that had integrity and that was grounded in risk management principles. as each day brings a different crush of business, and the staff members sometimes have to sprint to keep up. Grieme started out as supervisor in the records department in his firm. He had majored in political science in college and had to learn about records management from a variety of sources, including his staff. Grieme s firm maintains five offices. Staying in touch with regional offices is a 26 AALL Spectrum November 2008

4 challenge, but meeting this challenge has enhanced the status of his department, he says. Records management has come out of the basement, says Grieme. People realize that it s much more than file retrieval. Like Grieme, Steward learns from the members of his staff. They re on the front line, he says. Often, when problems come up, they propose solutions. The staff opens and classifies files, circulates them, and protects them, all the while documenting each step of each process and communicating with those in the firm who need to know what they are doing. An example of an is: I am leaving the department to deliver files on the sixth floor. Sent to all department members, this message reflects the department s emphasis on teamwork. Although record clerks specialize, they are also crosstrained. If one person can t do all of the work, others pitch in. Processing Client Files At each step in the processing of client files, ethical considerations must be addressed. Before a new case is accepted, the firm sometimes the staff of the records department and sometimes firm librarians checks to see if there will be a conflict of interest with any of the firm s current cases. If a conflict is found, the firm may not accept the new case, or it may establish an ethical wall. A wall is a set of rules that prevent certain attorneys in the firm from accessing files that present conflicts of interest. Warnings against circulating files to these attorneys are placed on file folders and entered into the electronic file management system. These warnings are heeded by members of the records centers staffs. Classifying Files Before Bill Ainsworth began the design process for the new naming and organizing scheme his firm is now implementing, he examined the filing systems of medical organizations, the Department of Justice, and the Department of Defense. As a result of this analysis, he identified some basic design tenets. It was apparent that a system design has to provide a consistently applied standard of information management. It has to stand the test of time, and it cannot be tied to a particular media type, Ainsworth says. In addition, the filing system has to be easy to teach and understand and effectively usable in multiple locations without restrictions or barriers. All of these design tenets were incorporated into the Standard Naming and Organizing Conventions. According to this system, files are divided into three categories: administrative files (business files the firm keeps), timekeeper files (attorneys work product, for which time is not charged), and client files. This categorization applies to all types of client information regardless of media type, including s, and is focused at the matter (case) level. This consistent approach to organizing information has already improved the ability of the firm s attorneys to collaborate across offices, Ainsworth says. Opening and Storing New Files When a new client file is opened, documents are placed in folders, and bar-coded labels printed from the electronic file management system are applied to the folders. The file is then Records management has come out of the basement. People realize that it s much more than file retrieval. Gary Grieme, Records Manager for Robins, Kaplan, Miller & Ciresi LLP in Minneapolis stored on a shelf. Some client infor - mation, such as corporate minute books and histories, estate planning documents, and evidence, may be stored in a locked room called a vault; a key and badge are required for entry. In addition to client files, the records center stores folders that contain file histories, billing information, internal memos, and attorney notes. These administrative files stay with the firm, even if the client moves his or her files to another firm. Keeping Track of Files The above description is only the beginning of the file storage story. Files may also be stored in project rooms throughout the firm where teams of attorneys work together on cases. They may also be stored in areas that are convenient to practice groups. Files that have been checked out from the records center may be in the offices of attorneys, paralegals, or secretaries. At Steward s firm, the Kansas City office staff periodically inventories all of the files located in the building by scanning each file folder s bar-code. The inventory is conducted on the weekend, when the firm is not as busy as during the week. Circulating Files File requests may be transmitted to a records center by phone, the electronic file management system, or . The requested file is pulled from the shelf or taken from the vault and checked out, then transported by staff to the requestor s office. When the file is no longer needed, a request to pick the file up is transmitted to the records center. The file is then checked in and re-shelved. Retaining or Destroying Files Chiaiese says the issue of records retention differentiates records centers from libraries. A library wants to increase its collection, but client files for inactive legal matters should, with client permission, either be returned to the client or destroyed once the firm s defined retention periods have passed, she says. Grieme says the destruction of client files in accordance with the firm s retention policy is part of the file s life cycle. Physical files take up space in the records center, and electronic files eat up hard drives. It s best to establish a retention policy and destroy the files or s when the retention period has expired, he says. Ainsworth describes another significant file retention challenge: file segregation when an attorney or client leaves the firm. This process has become so important in terms of protecting the clients continuity of representation that it has become a separate discipline within the department s operations, he says. Archiving Files Between the extremes of active files and ones that are scheduled for destruction are archived files. Many records departments contract with offsite facilities that store boxes of client files that can be retrieved when needed. Grieme s firm has its own warehouse for storage of these files, administered by staff members. Typical archived files are closed matters (cases), folders in litigation matters, and intellectual property files whose renewal dates are months in the future. (continued on page 41) AALL Spectrum November

5 protect continued from page 27 Client Files and Knowledge Management Nina Platt is owner of Nina Platt Consulting Company, which provides services to law firms and legal information and software vendors. In an article titled Knowledge Management: Can it Exist in a Law Office? Part 1, posted on Platt describes knowledge management (KM) as the creation of banks for briefs, pleadings, and forms; the collection and storage of research memos; and the creation of work product systems. Marketing information, document management, contacts management, case management, and records management may also be part of a KM system, she says. Records managers state that at this point, the kind of global, integrated KM system Platt describes is more an ideal than a reality. Grieme says KM poses questions such as: Who should be in charge of KM? What software should it use? He envisions KM as an umbrella over information technology, records management, word processing, and the firm library. Chiaiese says KM is evolving in her firm. She envisions a firm-wide knowledge repository that includes redacted electronic versions of certain documents stored in client files, and she believes librarians, as experts in the management of information, would be the most likely KM managers. Chiaiese believes the move toward KM will come of necessity. The growth of information in law firms has taken off in directions we couldn t have predicted. It is a large, critical mass, and if we don t manage it, we will be crushed by its weight, she says. Conclusion Like law librarians, records managers do their best to protect and preserve materials and make them available to people who need them. Today, both of these professionals deal with physical and electronic documents, naming and organizing these documents so they can be efficiently retrieved and used. The current name for this process is knowledge management, which, according to Nina Platt, leads to better service for clients. It is a learning environment. Knowledge should not be looked upon as a commodity, Platt says, but as a resource that can be shared. Judith D. Esrig (hesrig@kc.rr.com) graduated from the Emporia State School of Library and Information Science in December For many years she was a freelance business and technical writer. She is also an attorney and interested in working in law-related library fields.